PREVENTIVE SUSPENSION vs CONSTRUCTIVE DISMISSAL

1st DIVISION G.R. No. 180285 : July 6, 2010 MA. SOCORRO MANDAPAT, vs. ADD FORCE PERSONNEL SERVICES, INC. PEREZ, J.: Petition for Review on certiorari under Rule 45

Was Petitioner constructively dismissed?

There is constructive dismissal when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable that the employee has no alternative but to resign. In the present case, there is no evidence of discrimination which made her employment unbearable.

Preventive suspension is allowed when the suspension is to prevent the employee under investigation him from causing harm or injury to the company and his fellow employees. Sections 8 and 9 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997 state:

Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.

There is Constructive dismissal when preventive suspension exceeds the maximum period without actual or payroll reinstatement or when it is for an indefinite period.

Although the show-cause memorandum did not specify a period, petitioner erred in concluding that her suspension was for an indefinite period. With her authority as a Sales Manager, she had the power to enter into contracts that would bind respondent. Respondent has every right to protect its assets and operations pending investigation of petitioner. The acts of disconnection of computer and internet access privileges are not harassment. Respondent clearly explained that such were a consequence of the investigation against her.

These were measures enforced by respondent to protect itself while the investigation was ongoing.

The mere allegations of threat or force do not support a finding of forced resignation. For intimidation to vitiate consent, the following requisites must concur:
1) the intimidation caused the consent to be given;
2) the threatened act was unjust or unlawful;
3) the threat is real or serious, there being evident disproportion between the evil and the resistance which all men can offer, leading to the choice of doing the act which is forced on the person to do as the lesser evil; and
4) it produces a well-grounded fear that the person from whom it comes has the means or ability to inflict the threatened injury to his person or property.

Petitioenr failed to prove these. No demand was made on petitioner to resign= she was merely given the option to either resign or face disciplinary investigation, which respondent had every right to conduct in light of the numerous infractions she committed . The final decision on whether to resign or face disciplinary action was on petitioner .

The Supreme Court upheld the conclusion of the Court of Appeals that petitioner resigned and was not constructively dismissed.